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Discrimination at work - flexible working

This advice applies to Scotland

If you find it difficult to balance work and home - for example, because you have caring responsibilties - you may want to ask your employer for flexible working. If you ask your employer for flexible working and they refuse, it may be a breach of the flexible working regulations. It could also be unlawful discrimination under the Equality Act 2010.

Read this page to find out more about flexible working and when you may have been discriminated against.

What is flexible working?

Flexible working is any work pattern which is not your normal working pattern. It includes:

  • part-time or term-time work
  • compressed hours - where you work your total number of agreed hours over a shorter period
  • flexitime - where you have to work certain agreed core times but are otherwise free to organise your working hours outside of these times
  • home working for part or all of the time
  • job sharing.

The right to ask for flexible working

. You have the right to ask for flexible working if:

  • you're an employee, and
  • you've worked for your employer for 26 weeks, and
  • you aren't in one of the groups of employees who are not entitled to ask for flexible working - for example, an agency worker.

You don't have to have parental responsibility for children or caring responsibilities to request flexible working.

If you don't have the right to ask for flexible working under the law, you could still make an informal request or make one under your employer’s scheme if there is one.

When could it be unlawful discrimination?

If your request for flexible working is refused it may also be unlawful discrimination under the Equality Act. This means you can take action under the Act, for example, make a complaint or a discrimination claim in the employment tribunal.

Something will only be unlawful discrimination under the Act if it's because of:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation.

The Equality Act calls these things protected characteristics.

You’re a woman with young children

If you’re a woman with childcare responsibilities and your request for flexible working is refused, this could be indirect sex discrimination.

Indirect discrimination is when an employer has a practice, policy or rule which applies to all employees in the same way, but it particularly disadvantages certain employees more than others because of their protected characteristic.

A refusal to work flexibly particularly disadvantages women, as they're more likely than men to care for their children. For indirect discrimination to be made out, you also have to show that you’re personally disadvantaged by your employer’s refusal, for example, because you can’t find affordable childcare or childcare which covers all of your working hours.

In some situations, your employer will be able to justify indirectly discriminating against you if they can show they have a good enough business reason.

Example

You’ve asked your employer to work 3 days a week instead of  5 days after returning from your maternity leave. If you work full time you would have to leave your child for very long hours at nursery, 5 days a week. Your employer refuses your request because he says your position can only be done full time.

The requirement to work full time is a policy which applies to all staff doing the same job as you, but it’s likely to have a worse effect on women than men. You’re also personally disadvantaged by it, because you feel it’s not in your child’s best interest to be left for long hours in childcare and therefore you feel you can’t comply with the requirement.

This is likely to be indirect sex discrimination unless your employer can justify the requirement to work full time.

You’re a man with young children

If you’re a man with young children and you’re refused flexible working, it could be direct discrimination. Direct discrimination is when you’re treated differently and worse than someone else because of your protected characteristic.

If you want to make a direct discrimination claim you would have to show that a woman in the same or similar situation to you would have had their request for flexible working agreed and that you were refused because you’re a man.

You have caring responsibilities for a disabled person

If you’re the carer of someone who's disabled and you’re refused flexible working, it could be direct disability discrimination by association. Discrimination by association is when you're discriminated against because of the protected characteristic of someone you're with or you know.

To make a direct discrimination claim, you would have to show that if you were caring for a non-disabled person you would have had your request for flexible working agreed and that the reason you were refused is that they're disabled.

Example

Your son is disabled and you make a request for flexible working. Your employer is usually quite open to flexible working requests, but refuses to allow it in your case. He's been heard saying that people with disabled children shouldn't be working at all.

When you challenge him about it he loses his temper and says he's sick of you going on about your son, and that you're playing the disability card. This is direct discrimination by association against you because of your son's disability. It could also be unlawful harassment.

Next steps

Other useful information

Flexible working

Working Families

Working Families helps parents and employers find a better balance between home and work life. It provides fact sheets and advice on family-friendly rights and runs a helpline for families on low incomes providing advice on legal rights, benefits and working family-friendly hours.

Cambridge House
1 Addington Square
London
SE5 0HF

Tel: 020 7253 7243
Free legal helpline for low income families: 0300 012 0312
Email: office@workingfamilies.org.uk (admin only)
Website: www.workingfamilies.org.uk

Equality Advisory Support Service (EASS)

If you have experienced discrimination, you can get help from the EASS discrimination helpline.

Equality and Human Rights Commission (EHRC)

You can find useful information about discrimination on the EHRC website.

Acas

Acas (Advisory, Conciliation and Arbitration Service) provides free and impartial information and advice on all aspects of workplace relations and employment law.

To talk to an adviser about your employment problem, call the Acas helpline on 0300 123 1100.

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